The Perils of Probationary Periods

Employers frequently misunderstand their obligations when dismissing probationary employees. Many employers assume that they can terminate a person’s employment for any reason whatsoever. This is incorrect. The probationary period is treated like a trial period of employment. If the employer determines that the employee is not the right fit, it may elect to terminate the employment relationship without any notice or severance. However, the inclusion of a probationary clause does not give an employer unfettered discretion to terminate a new employee’s employment. The probationary employee must prove to be “unsuitable” for the position.

Although suitability will be determined by a number of factors, it is generally understood that the employee must be given a reasonable opportunity to demonstrate his or her ability to meet the standards of the position. This assessment cannot be arbitrary or made in bad faith. An employee must be made aware of the employer’s expectations.

The need to convey expectations to probationary employees was discussed in Ly v. British Columbia (Interior Health Authority), 2017 BCSC 42. In that case, the employer dismissed Mr. Ly during his probationary term for failing to meet its expectations. However, the court found that the employer had failed to give Mr. Ly a reasonable opportunity to demonstrate his suitability. Importantly, Mr. Ly had sent his employer an email five weeks into his employment requesting a meeting with his superior in order to more fully understand the expectations of his position. Mr. Ly did not receive a response. His employment was terminated shortly thereafter.

In reaching its conclusion that the employer’s expectations of suitability were not properly conveyed to Mr. Ly, the court relied on the fact that Mr. Ly reached out to his employer to better understand the standard expected of him. The absence of any response denied Mr. Ly a fair opportunity to demonstrate suitability. The Court discussed this aspect at paragraph 59:

In considering the events leading to Mr. Ly’s termination in light of the legal standard of suitability, I find that he was not given a fair opportunity to demonstrate his suitability for his position. Mr. Ly made genuine and concerted attempts to better understand the basis for his employer’s assessment of his suitability but his efforts to do so were not responded to with clarity by his employer. I accept Mr. Ly’s testimony that he tried to ascertain relatively early on in his probationary period the expectations and standards IHA would apply to him in assessing his suitability but he was not, in his words, “given a chance” in this regard. Absent such a fair opportunity to demonstrate his suitability, Mr. Ly is entitled to damages.

As a result, the Court held that Mr. Ly had been wrongfully dismissed and awarded him three months’ pay in lieu of reasonable notice.

The decision in Ly v. B.C. confirms that the standard for termination is “suitability” and “suitability” must be assessed in good faith. In many ways, including a probationary clause in an employment agreement can make it more difficult to terminate a person’s employment. Employers would be wise to consider whether the expectation and standards of the position have been explained to a probationary employee prior to dismissal as a failure to do so may result in a wrongful dismissal award.

Pushor Mitchell Lawyers Leneigh Bosdet and Paul Tonita will be volunteering their time in the Pro Bono Advice-a-Thon even that takes place in city park in Kelowna throughout the day on September 10, 2019.